Anda di halaman 1dari 18








FEBRUARY 28, 2019


Chairman Cohen, Ranking Member Johnson, and members of the subcommittee, thank
you for this opportunity to testify on behalf of the Brennan Center for Justice at New York
University School of Law.1 The Brennan Center is a nonpartisan law and policy institute that
seeks to improve our systems of democracy and justice. I co-direct the Center’s Liberty and
National Security Program, which works to advance effective national security policies that
respect constitutional values and the rule of law.

In December 2018, the Brennan Center completed a two-year intensive research project
on the legal framework for national emergencies, which I oversaw. This work was a natural
outgrowth of the program’s longtime focus on executive power in the area of national security.2
We began our study of emergency powers by researching the history of the National
Emergencies Act of 1976. We then catalogued all the statutory powers that become available to
the president when a national emergency is declared, and for each such power, we determined
when and under what circumstances it had been invoked. We published this compendium online3
along with a list of national emergency declarations issued since the National Emergencies Act
went into effect.4

Based on this research, it is my firm opinion that Proclamation 98445 is an unprecedented

abuse of the laws governing national emergencies. President Donald Trump issued this
emergency declaration, not because a sudden change in circumstances necessitated an immediate
response, but because Congress rebuffed his efforts to obtain funding for a long-term policy goal.
Using emergency powers to get around Congress is inconsistent with Congress’s intent in
passing the National Emergencies Act and in providing the president with emergency powers to
exercise. It is also an affront to the constitutional separation of powers.

If allowed to stand, the declaration will create a precedent that allows presidents to
deploy literally dozens of extraordinary statutory powers, including powers that are far more
potent than the ones the president has invoked here, as a matter of routine and in the face of
express congressional disapproval. This would permanently alter the balance of power between
the political branches of government. It would also subvert basic democratic principles by
allowing the implementation of government policies opposed by a majority of Congress.

This testimony is submitted on behalf of a Center affiliated with New York University School of Law but does not
purport to represent the school’s institutional views on this topic. More information about the Brennan Center’s
work can be found at
See, e.g., Michael German and Sara Robinson, Wrong Priorities on Fighting Terrorism, Brennan Center for
Justice, 2018; Faiza Patel and Meghan Koushik, Countering Violent Extremism, Brennan Center for Justice, 2017;
Elizabeth Goitein, The New Era of Secret Law, Brennan Center for Justice, 2016; Michael German, Strengthening
Intelligence Oversight, Brennan Center for Justice, 2015; Elizabeth Goitein and Faiza Patel, What Went Wrong with
the FISA Court, Brennan Center for Justice, 2015.
“A Guide to Emergency Powers and Their Use,” Brennan Center for Justice, last modified January 23, 2019,
accessed February 25, 2019,
“Declared National Emergencies Under the National Emergencies Act,” Brennan Center for Justice, accessed
February 25, 2019,
Proclamation No. 9844, 84 Fed. Reg. 4949 (Feb. 15, 2019).
Finally, the president’s actions have highlighted critical weaknesses in the National
Emergencies Act that could invite future abuse. Regardless of the outcome in this instance,
Congress should enact common-sense reforms that provide the president with the flexibility he
needs in a crisis, while simultaneously ensuring that these extraordinary powers can’t be used to
undermine our democracy and guarding against the corrosive phenomenon of “permanent

I. Emergency Powers in the U.S.: What they Are—and Aren’t

Emergency powers have existed in countries around the world for hundreds of years.
They are based on a simple premise: The laws that hold sway in ordinary times might not be
sufficient to respond to an unforeseen crisis, and amending the law to provide greater powers
might take too long or do damage to principles held sacrosanct in ordinary times. Emergency
powers thus give the government—usually, the head of state—a temporary boost in power until
the crisis passes or there is time to change the law through normal legislative processes.6

Unlike the modern constitutions of most countries,7 the U.S. Constitution includes no
separate regime for emergencies. It does include a handful of specific crisis-response provisions,
but these powers are given to Congress, not to the president. Most notably, Congress may
suspend the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety
may require it,”8 and Congress has the power “to provide for calling forth the Militia to execute
the laws of the Union, suppress Insurrections and repel Invasions.”9

Accordingly, since the founding of the nation, Congress has been the primary source of
the president’s emergency powers. It has periodically legislated standby authorities that the
president may activate when certain types of emergencies occur.10 These are akin to an advance
medical directive; they represent Congress’s best guess as to what authorities a president might
need in a crisis that is unfolding too quickly for Congress to act in the moment. As such, they can
be quite broad in the actions that they allow and in the discretion that they grant.

Critically, however, none of these powers allows the president to make law in his own
right—i.e., to create the alternative set of rules that will govern his actions. Similarly, while some
laws specify certain statutory provisions that the president may suspend in an emergency, none
allows him to choose for himself which laws he may disregard. Under the statutory emergency
powers regime, the president is strictly limited to the powers that Congress has granted to him in

See generally John Ferejohn and Pasquale Pasquino, “The Law of the Exception: A Typology of Emergency
Powers,” International Journal of Constitutional Law 2 (2004): 210; Jules Lobel, “Emergency Power and the
Decline of Liberalism,” Yale Law Journal 98 (1989): 1385.
A review of current constitutions reveals that at least 178 countries’ constitutions have provisions for emergency
rule. See Constitute, s.v. “emergency provisions,” accessed February 25, 2019,
U.S. Const. art. 1, § 9, cl. 2.
U.S. Const. art. 1, § 8, cl. 15.
Harold C. Relyea, National Emergency Powers, Congressional Research Service, 2007, 5,

advance. The will of Congress thus remains the touchstone during emergencies as in other
times.11 This scheme preserves the constitutional separation of powers, in contrast to some other
countries whose constitutions allow the head of state to dissolve the legislature or take over its
functions during times of emergency.12

II. The Origin and Purpose of the National Emergencies Act

Although statutory emergency powers have existed since the country’s founding, the
process by which presidents avail themselves of such powers has evolved over time. The current
system for national emergencies—in which the president declares a national emergency, and the
declaration unlocks statutory powers that would otherwise lie dormant—dates back to President
Woodrow Wilson.13 It developed organically, and for several decades there was no single law
that governed the process. Presidents did not have to identify what powers they would invoke or
keep Congress informed of their actions, and states of emergency could last indefinitely.

In the 1970s, several scandals involving executive branch overreach—including

Watergate, the bombing of Cambodia, and domestic spying by the CIA—prompted Congress to
take a hard look at executive power, and to enact several laws aimed at reasserting Congress’s
role as a coequal branch of government and a check on executive authority.14 It was in this
context that a special Senate committee was formed to examine presidential use of emergency

The immediate impetus for the committee’s formation was Republican Senator Charles
Mathias’s discovery that an emergency declaration issued in 1950, at the start of the Korean
War, was still in place and was being used to prosecute the war in Vietnam. On closer
examination, the committee learned that four clearly outdated states of emergency were still in
effect, giving the president access to literally hundreds of statutory emergency powers. These
included powers “to seize property and commodities, organize and control the means of
production, call to active duty 2.5 million reservists, assign military forces abroad, seize and
control all means of transportation and communication, restrict travel, and institute martial law,
and, in many other ways, manage every aspect of the lives of all American citizens.”15

The committee’s work culminated in the introduction and passage of the National
Emergencies Act of 1976.16 The clear purpose of the law, evident in every facet of the legislative

Some scholars believe the Constitution also grants the president “inherent” emergency powers (see, e.g., Richard
A. Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (New York: Oxford University
Press, 2006)), and presidents since Abraham Lincoln have occasionally cited such inherent powers to justify
emergency measures that Congress had not authorized or had even prohibited. This is a wholly separate source of
emergency power that is not addressed here because it not being claimed or relied upon in this instance.
See, e.g., Constitution of the Republic of Ecuador, 2015, ch. 3, § 1, art. 148.
Relyea, National Emergency Powers, 7.
See generally Thomas E. Cronin, A Resurgent Congress and the Imperial Presidency, 95 Political Science
Quarterly 209-37 (1980).
S. Comm. on Government Operations and the Spec. Comm. on National Emergencies and Delegated Emergency
Powers, The National Emergencies Act (Public Law 94-412), Source Book: Legislative History, Text, and Other
Documents, at 20 (1976) [hereinafter Spec. Comm. on National Emergencies Source Book].
National Emergencies Act, Pub. L. No. 94-412, 90 Stat. 1255 (1976).

history, was to place limits on presidential use of emergency powers. As summarized by the
committee in urging passage of the Act:

While much work remains, none of it is more important than passage of the
National Emergencies Act. Right now, hundreds of emergency statutes confer
enough authority on the President to rule the country without reference to normal
constitutional process. Revelations of how power has been abused by high
government officials must give rise to concern about the potential exercise,
unchecked by the Congress or the American people, of this extraordinary power.
The National Emergencies Act would end this threat and insure that the powers
now in the hands of the Executive will be utilized only in time of genuine
emergency and then only under safeguards providing for Congressional review.17

The law employed several mechanisms to this end. It required the president to publish
declarations of national emergency in the Federal Register;18 to specify the powers he intended to
invoke;19 and to report to Congress every six months on expenditures related to emergency
powers.20 It provided that states of emergency would terminate after a year unless renewed by
the president.21 Most important, it allowed Congress to terminate states of emergency at any time
through a concurrent resolution (a so-called “legislative veto” that would take effect without the
president’s signature),22 and it required Congress to meet every six months while an emergency
declaration was in effect to “consider a vote” on whether to end the emergency.23

As enacted, the law did not include a definition of “national emergency.” Critically,
however, this omission was not intended as a grant of unlimited discretion. Under an earlier draft
of the legislation, the president was authorized to declare a national emergency “[i]n the event
the President finds that a proclamation of a national emergency is essential to the preservation,
protection and defense of the Constitution or to the common defense, safety, or well-being of the
territory or people of the United States.”24 One committee report noted that “[t]he definition of
an emergency has been deliberately cast in broad terms that makes it clear that a proclamation of
a state of national emergency requires a grave national crisis.”25

The Senate Committee on Government Operations ultimately removed this language, not
because it was too limiting, but because the committee believed it to be too broad. As stated in
the committee’s report:

[F]ollowing consultations with several constitutional law experts, the committee

concluded that section 201(a) is overly broad, and might be construed to delegate
additional authority to the President with respect to declarations of national

Spec. Comm. on National Emergencies Source Book at 50.
National Emergencies Act, Pub. L. No. 94-412, § 201, 90 Stat. 1255 (codified at 50 U.S.C. § 1621).
National Emergencies Act, Pub. L. No. 94-412, § 301, 90 Stat. 1255, 1257 (codified at 50 U.S.C. § 1631).
National Emergencies Act, Pub. L. No. 94-412, § 401 (c), 90 Stat. 1255, 1257 (codified at 50 U.S.C. § 1641(c)).
National Emergencies Act, Pub. L. No. 94-412, § 202 (d), 90 Stat. 1255, 1257 (codified at 50 U.S.C. § 1622(d)).
National Emergencies Act, Pub. L. No. 94-412, § 202, 90 Stat. 1255 (codified as amended at 50 U.S.C. § 1622).
National Emergencies Act, Pub. L. No. 94-412, § 202 (b), 90 Stat. 1255, 1256 (codified at 50 U.S.C. § 1622(b)).
See, e.g. S. 977, 94th Cong. § 201 (a) (1975).
Spec. Comm. on National Emergencies Source Book at 96.

emergency. In the judgment of the committee, the language of this provision was
unclear and ambiguous and might have been construed to confer upon the
President statutory authority to declare national emergencies, other than that
which he now has through various statutory delegations.

The Committee amendment clarifies and narrows this language. The Committee
decided that the definition of when a President is authorized to declare a national
emergency should be left to the various statutes which give him extraordinary
powers. The National Emergencies Act is not intended to enlarge or add to
Executive power. Rather the statute is an effort by the Congress to establish clear
procedures and safeguards for the exercise by the President of emergency powers
conferred upon him by other statutes.26

The committee’s solution ultimately proved ineffective, as the majority of the statutes in
place today that confer power on the president during “national emergencies” do not include
definitions of the term or criteria that must be met beyond the issuance of the declaration. It is
nonetheless significant that Congress believed that even a definition limiting national
emergencies to grave national crises would be “overly broad.” The notion that Congress intended
the National Emergencies Act as an affirmative delegation of unlimited discretion to the
president is contradicted by this and every other aspect of the legislative history.

III. National Emergencies from 1979 to the Present

In many respects, the National Emergencies Act has not served as the strong check on
executive action that Congress intended. The requirements that the president publish a
declaration of national emergency in the Federal Register, identify publicly the powers he
intends to use, and report to Congress on emergency-related expenditures have provided a
modicum of transparency (although expenditure reports from the past fifteen years are not
readily available to the public). Other key provisions, however, have proven toothless.

As noted, the decision not to define “national emergency,” although intended to ensure
the Act did not result in an expansion presidential authority, in practice meant there were no
clearly articulated limits on the exercise of the president’s discretion. In addition, expiration of
emergencies after one year, intended as the default, has become the exception. Most of the
emergencies declared since the National Emergencies Act was passed are still in effect. The
average length of emergencies has been approximately 10 years, with 25 emergencies lasting
even longer. The longest-running state of emergency was issued by President Jimmy Carter in
1979 in response to the Iranian hostage crisis and remains in place today.27

S. Comm. on Gov. Operations, Report to Accompany H.R. 3884, S. Rep. No. 94-1168, at 3 (1976) (reprinted in
Spec. Comm. on National Emergencies Source Book at 292).
See “Declared National Emergencies Under the National Emergencies Act,” Brennan Center for Justice, accessed
February 25, 2019,

Perhaps most significantly, Congress has not exercised its intended role as a check on
presidential power. In 1983, the Supreme Court ruled that concurrent resolutions are
unconstitutional.28 Congress’s solution was to substitute a joint resolution as the mechanism for
terminating emergencies.29 Like any other legislation, a joint resolution must be signed into law
by the president. If the president vetoes the resolution, Congress can override the veto only with
a two-thirds vote by both houses. This change greatly diluted the role of Congress as envisioned
in the original Act.

Moreover, Congress has demonstrated little interest in exercising the powers it gave
itself. The Act requires Congress to meet every six months while an emergency is in place to
consider a vote on whether to end the emergency. States of emergency have been in place
throughout the 40-plus years the law has been in effect, which means Congress should have met
approximately 80 times to review existing states of emergency. There is no indication, however,
that Congress has ever done so.30 Before now, only one resolution to end a state of emergency
had ever been introduced, and the emergency declaration at issue was revoked before Congress
could vote on it.31

National emergencies are thus easy to declare and hard to stop—and they grant access to
a rich well of powers, most of which are available regardless of whether they are relevant to the
emergency at hand. Given this state of affairs, one might expect presidents to declare
emergencies at every turn and to exploit all of the powers available to them. Yet this has not
been the case. To the contrary, presidents have generally exercised considerable self-restraint in
their use of statutory emergency powers, and there have been few clear misuses of the authority
to declare national emergencies.

It might seem odd to describe presidential use of emergency powers as restrained, given
that 60 states of national emergency have been declared in a 40-year period, 32 of which are in
effect today. Fifty-four of these declarations, however, were issued for the sole or primary
purpose of imposing economic sanctions on foreign actors under the International Emergency
Economic Powers Act (IEEPA) and related sanctions laws.32 These declarations must be
considered separately.

INS v. Chadha, 462 U.S. 919, 954-55 (1983).
See 50 U.S.C. § 1622(a)(1).
On one occasion in 1980, the Chair of the House Foreign Affairs Committee sent a letter to the Speaker of the
House expressing approval over the continuation of an existing state of emergency. See Patrick A. Thronson,
“Toward Comprehensive Reform of America’s Emergency Law Regime,” University of Michigan Journal of Law
Reform 46:2 (2012): 737, 752, 752 n. 108. This, apparently, is the closest Congress has come before now to
considering a vote.
Tamara Keith, “If Trump Declares an Emergency to Build the Wall, Congress Can Block Him,” NPR, February
11, 2019,
The numbers in this paragraph are derived from review of the emergency proclamations as compiled by the
Brennan Center and comprehensively listed at “Declared National Emergencies Under the National Emergencies
Act,” Brennan Center for Justice, accessed February 25, 2019,

IEEPA is, in many ways, sui generis. Congress enacted it in 1977 to limit the powers
conferred by the 1917 Trading With the Enemy Act (TWEA). It was Congress’s sense that the
TWEA, which gave presidents broad authority to “investigate, regulate . . . prevent or prohibit
. . . transactions” in times of war or declared emergency,33 had been improperly used to regulate
domestic economic activity during peacetime. IEEPA thus limited the use of TWEA to wartime,
and created a new framework for peacetime emergencies.34 Under that framework, presidents
could declare a national emergency based on an “unusual and extraordinary threat” to the U.S.
national security, foreign policy, or economy “which has its source in whole or substantial part
outside the United States.”35 The president could then authorize a range of economic actions to
address the foreign threat.

Despite being tied to the mechanism of national emergency declarations, and despite the
requirement of an “unusual and extraordinary threat,” IEEPA has been used almost from the
outset as a basic tool of foreign policy. Presidents issue declarations under IEEPA in situations
where imposing sanctions on foreign actors would advance U.S. interests, regardless of whether
the threat to those interests is truly “extraordinary.”36 IEEPA declarations create sanctions
regimes that often become—and are intended to become—semi-permanent in nature. IEEPA
thus underlies current U.S. economic policies toward governments or factions in Iran, Sudan, the
Balkans, Zimbabwe, Iraq, Syria, Belarus, the Democratic Republic of the Congo, the Central
African Republic, Burundi, Lebanon, North Korea, Venezuela, Somalia, Libya, Yemen, and

This routinization of IEEPA use is problematic in many respects. Among other things, it
cheapens the currency of national emergencies. When President Obama declared a national
emergency to impose sanctions on Venezuela in 2015, finding that “the situation in Venezuela
. . . constitutes an unusual and extraordinary threat to the national security and foreign policy of
the United States,”38 Venezuelan president Nicolás Maduro’s strong reaction prompted unusual
public scrutiny of the declaration. The White House hastened to reassure the public that there
was, in fact, no threat to U.S. national security, despite the president’s words to the contrary.
“[T]he United States does not believe that Venezuela poses some threat to our national security,”
said Deputy National Security Adviser Ben Rhodes. “We, frankly, just have a framework for
how we formalize these executive orders.”39 State Department spokesperson Jen Psaki echoed

Trading with the Enemy Act of 1917, ch. 106 § 5 (b)(1), 40 Stat. 415 (1917) (codified as amended at 50 U.S.C. §
See Laura K. Donohue, “Constitutional and Legal Challenges to the Anti-Terrorist Financing Regime,” Wake
Forest Law Review 43 (2008): 643, 647-48.
International Emergency Economic Powers Act, Pub. L. 95-223, title II, § 202, 91 Stat. 1626 (1977) (codified at
50 U.S.C. 1701 (b)).
See Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair (Yale
University Press, 1990), 47.
See “Declared National Emergencies Under the National Emergencies Act,” Brennan Center for Justice, accessed
February 25, 2019,
Exec. Order No. 13692, 80 Fed. Reg. 127467 (Mar. 8, 2015).
Gregory Korte, “White House: States of emergency are just formalities,” USA Today, April 9, 2015,

his remarks: “This is how we describe the process of naming sanctions, and there are 20 to 30
other sanctions programs we have.”40

Nonetheless, Congress has for decades acquiesced in, and arguably ratified, the use of
IEEPA as a substitute for ordinary sanctions legislation.41 Indeed, there is some evidence that
Congress, in passing IEEPA, expected that it would be used to fill gaps in legislative regimes.
Presidents had previously invoked a provision of the TWEA to impose controls over certain
types of exports when export-control legislation—the Export Administration Act—had lapsed.
Congress imported the relevant language from the TWEA into IEEPA, and the legislative history
shows that Congress anticipated it could be used in the same way if the Export Administration
Act were to lapse again in the future.42 (That is, in fact, exactly what happened in 1983.)43

If IEEPA declarations are set aside, the picture looks very different. National emergency
declarations not relying on IEEPA have been few and far between. A complete list of such
declarations prior to President Trump’s Proclamation 9844 includes:

 Executive Order 12722 (1990) – issued in response to the Iraqi invasion of Kuwait.
Although the emergency was initially declared for the purpose of imposing sanctions
under IEEPA, President George H.W. Bush subsequently relied on it to bolster military
strength and to engage in military construction during the Gulf War.

 Proclamation 6491 (1992)44 – issued in response to Hurricanes Andrew and Iniki. The
declaration was used to suspend minimum wage requirements with respect to
reconstruction efforts in areas devastated by the hurricanes.

 Proclamation 6867 (1996) – issued in response to Cuban attacks on U.S. civilian aircraft.
The declaration was used to impose a naval blockade on Cuba.

 Proclamation 7463 (2001) – issued in response to the attacks of 9/11. The declaration was
used primarily to make changes in the size and composition of the military forces,
including calling reservists to active duty and implementing stop-loss policies.

This is not to say that it would be impossible for presidents to abuse IEEPA or to use it in ways Congress has not
(tacitly) approved. IEEPA is written broadly enough to permit actions that go far beyond imposing economic
sanctions against foreign governments or factions. Indeed, after 9/11, the administration of President George W.
Bush invoked IEEPA to effectively shut down several U.S.-based Muslim charities. In two cases, courts held that
these actions were unconstitutional. See Al Haramain Islamic Foundation, Inc. v. U.S. Dept. of the Treasury, 686
F.3d 965 (9th Cir. 2012); Kindhearts for Charitable Humanitarian Dev. v. Geithner, 647 F.Supp.2d 857 (N.D. Ohio
See Joel B. Harris and Jeffrey P. Bialos, “The Strange New World of United States Export Controls Under the
International Emergency Powers Act,” Vanderbilt Journal of Transnational Law 18 (1985): 78-80, 78 n. 16.
Exec. Order No. 12444, 48 Fed. Reg. 48215 (Oct. 14, 1983).
Although the proclamation stated that the hurricanes constituted a “national emergency” and invoked emergency
powers, it did not formally declare an emergency under the National Emergencies Act. Accordingly, this
proclamation is not included in the Brennan Center’s list of national emergency declarations. It is referenced in this
testimony to present a complete picture of how emergency powers have been used.

 Proclamation 7924 (2006) – issued in response to Hurricane Katrina. The declaration was
used to suspend minimum wage requirements with respect to reconstruction efforts in
areas devastated by the hurricane.

 Proclamation 8443 (2009) – issued in response to the swine flu epidemic. The declaration
was used to waive certain legal requirements in order to facilitate the provision of public
health services.

In all of these cases, the declarations were triggered by sudden, unexpected events. With
the exception of Iraq’s invasion of Kuwait, which prompted an emergency declaration for the
initial purpose of imposing sanctions under IEEPA, these occurrences directly and significantly
affected Americans’ health or safety, and at least arguably necessitated an immediate response
(regardless of whether one believes the president’s response, in each case, was the correct one).

This is not to say that no misuses have occurred. As noted, it is questionable whether
Iraq’s invasion of Kuwait constituted an emergency for the U.S. that justified invoking
emergency military powers. And while Cuba’s attack on American aircraft and the attacks of
9/11 constituted real emergencies, it is worrisome that those states of emergency remain in place
today. Emergencies, of course, can result in permanent changes in external conditions
necessitating new or different legal authorities. The solution is for Congress to enact the
necessary changes in the law—not to permit indefinite emergency rule by the president. The
Cuba and 9/11 emergencies have become, in effect, “permanent emergencies,” which is one of
the phenomena the National Emergencies Act was designed to prevent.45

Among other dangers, “permanent emergencies” increase the likelihood that the
declaration will be used for purposes unrelated to the original triggering emergency. The 9/11
state of emergency already has been pressed into service to deal with problems having nothing to
do with 9/11. President George W. Bush relied on the 9/11 declaration to call up reservists and
implement stop-loss in the Iraq War.46 In 2017, President Trump relied on the 9/11 declaration to
invoke emergency powers to fill a chronic shortage in Air Force pilots.47

See, e.g., Spec. Comm. on National Emergencies and Delegated Emergency Powers, Interim Report, S. Rep. No.
93-1170, at 1 (reprinted in Spec. Comm. on National Emergencies Source Book at 19 (“A majority of Americans
alive today have lived their entire lives under emergency rule.”)); 120 Cong. Rec. S15784-86 (daily ed. Aug. 22,
1974) (statement of Sen. Church) (reprinted in Spec. Comm. on National Emergencies Source Book at 73) (“[F]ew,
if any, foresaw that the temporary states of emergency declared in 1933, 1939, 1941, 1950, 1970, and 1971, would
become what are now regarded collectively as virtually permanent states of emergency . . . .”).
See Proclamation No. 7463, 66 Fed. Reg. 48197 (Sept. 14, 2001) (declaring 9/11 state of emergency and
activating 10 U.S.C. § 12302, authorizing the call-up of reservists and thus triggering stop-loss authority under 10
U.S.C. § 12305); Doe v. Rumsfeld, 435 F.3d 980, 984-985 (9th Cir. 2006) (citing 9/11 declaration as the source of
authority for the exercise of these authorities in Iraq).
See Exec. Order No. 13814, 82 Fed. Reg. 49271 (Oct. 20, 2017); Jeff Daniels, “Trump executive order lets Air
Force recall up to 1,000 retired pilots for active duty,” CNBC, October 21, 2017,

Still, what is most notable about the record of presidential use of emergency powers
(outside the unique context of IEEPA48) is what has not happened. Despite the lack of strong
limits in National Emergencies Act, presidents have not declared national emergencies simply to
grant themselves additional powers when convenient. In most cases, they have not renewed the
emergency declarations indefinitely, but revoked them or allowed them to expire when the threat
had passed. And while nothing in the National Emergencies Act would prevent presidents from
using emergency declarations to access dozens of special powers unrelated to the emergency at
hand, presidents have not exploited that license. The Brennan Center’s research indicates that
nearly 70% of the powers available to the president when he invokes a national emergency have
never been invoked.49

Given the permissive nature of the National Emergencies Act, it was perhaps only a
matter of time until this record of self-restraint ended, and a president misused the Act to give
himself powers Congress never intended for him to have. We are in that position today.

IV. President Trump’s Declaration: An Unprecedented Abuse

Against this backdrop, President Trump’s emergency declaration is an unprecedented

abuse of emergency powers for at least two reasons.

The first reason is the absence of conditions that meet any common-sense definition of an
emergency. Congress did not include a definition of “national emergency” in the National
Emergencies Act. However, the word “emergency” is not meaningless. A quick sampling of
prominent English-language dictionaries reveals some common elements. Merriam-Webster, for
instance, defines “emergency” as “an unforeseen combination of circumstances or the resulting
state that calls for immediate action”50; the Oxford-English dictionary similarly defines it as “[a]
serious, unexpected, and often dangerous situation requiring immediate action.”51

A basic element of an emergency, in other words, is that the circumstances in question

must be unexpected—and must presumably represent a change for the worse, not the better. In
that respect, an “emergency” is fundamentally different than a “problem.” Unless it has
unexpectedly gotten worse, a problem that has existed for years or decades cannot accurately be
described as an “emergency,” no matter how serious that problem might be.

Even with respect to IEEPA, presidents have shown some restraint. As noted above (see footnote 41), IEEPA is
written broadly enough to allow the imposition of punishing economic consequences on American citizens/residents
and organizations. With the disturbing exception of executive branch actions in the aftermath of 9/11, however,
IEEPA generally has been used to target foreign actors, including foreign governments, officials, factions, and
suspected narcotics traffickers and terrorist groups.
Elizabeth Goitein, “Trump’s Hidden Powers,” Brennan Center for Justice, December 5, 2018,; see also “A Guide to Emergency Powers and Their
Use,” Brennan Center for Justice, last modified January 23, 2019, accessed February 25, 2019,
Merriam-Webster, s.v. “emergency,” accessed February 25, 2019, https://www.merriam-
English Oxford Living Dictionaries, s.v. “emergency,”

It is possible to view illegal immigration at the southern border as a significant problem
and still acknowledge the simple reality that it has not taken an unexpected turn for the worse.
Official government data leave no doubt on that point. Illegal border crossings have been
steadily declining since reaching a record high of 1.64 million in 2000. In 2017, they reached
their lowest point (303,916) in 40 years; they remained close to that historic low (396,579), and
well within the fluctuation range for the past several years, in 2018.52 There have been no
significant changes in patterns of crime, either: statistically, immigrants—both documented and
undocumented—remain less likely to commit crimes, including violent crimes, than U.S.
citizens.53 Similarly, official reports indicate that the drugs President Trump has identified as
posing a threat to the U.S.—methamphetamine, heroin, cocaine, and fentanyl—continue to be
smuggled primarily through ports of entry, as they have in the past.54 Indeed, the only change in
circumstances the president was able to identify in his proclamation is a significant increase in
families seeking asylum at the border.55 This change, however, is not evidence of “unlawful
migration”—the crisis identified in the proclamation—as these families are seeking admission to
the United States through lawful means.

Moreover, it is clear from President Trump’s own words and actions that the situation at
the southern border does not require “immediate action.” For the first two years of his
administration, it apparently did not occur to the president to consider illegal border crossings a
national emergency. He first dangled the idea that he might declare a national emergency in early
January 2019.56 Yet he waited a full six weeks before declaring the emergency. When he
announced the declaration, he explicitly stated that quick action was not a necessity in this case,
just a personal preference: “I could do the wall over a longer period of time. I didn’t need to do
this. But I’d rather do it much faster.”57 Finally, the White House has indicated that the president
will not obtain funding from emergency sources until he has exhausted various non-emergency
sources of funding,58 which will presumably take months if not years.

Lori Robertson, “Illegal Immigration Statistics,” FactCheck.Org, last modified January 9, 2019, accessed
February 25, 2019,; U.S. Border Patrol,
“Southwest Border Sectors: Total Illegal Alien Apprehensions by Fiscal Year,” accessed February 25, 2019,
See, e.g., Alex Nowrasteh, “The Murder of Mollie Tibbetts and Illegal Immigrant Crime: The Facts,” Cato
Institute, August 22, 2018,
(observing that “[t]he illegal immigrant conviction rate for homicide was 44 percent below that of native-born
Americans in 2016 in Texas”) (emphasis in original).
U.S. Customs and Border Protection, “CBP Enforcement Statistics FY2018,” accessed February 25, 2019, (showing that, between October 2017 and August
2018, federal agents seized 88 percent of cocaine, 90 percent of heroin, 87 percent of methamphetamine, and 80
percent of fentanyl at ports of entry).
Proclamation No. 9844, 84 Fed. Reg. 4949 (February 15, 2019).
Jane C. Timm, “Fact check: What’s a ‘national emergency’ and can Trump declare one to get his wall?”, NBC
News, January 4, 2019,
White House, “Remarks by President Trump on the National Security and Humanitarian Crisis on our Southern
Border,” February 15, 2019,
Charlie Savage, “Trump to Tap Other Military Money for Wall Before Emergency Funds,” New York Times,
February 19, 2019,

As noted above, not all the events triggering past declarations of national emergency
outside posed a clear threat to the U.S. Outside of the IEEPA context, however, they all
constituted significant, unforeseen changes in circumstances, and all but one involved direct and
substantial harm to Americans’ health or safety. A year in which illegal border crossings
continue to occur at historically low rates simply cannot be compared to the Iraqi invasion of
Kuwait, Cuban attacks on U.S. aircraft, the attacks of 9/11, major hurricanes, or an outbreak of
swine flu. And in all of these cases, presidents acted promptly after the need for emergency
measures became apparent.

Moreover, even if illegal border crossings had spiked to an all-time high, President
Trump’s declaration would be an unprecedented abuse of authority. That’s because President
Trump sought funding from Congress to build a wall along the southern border, and Congress
expressly refused to provide it. Indeed, Congress voted repeatedly not to give the president the
authority and funds that he requested.59 For the first time since the passage of National
Emergencies Act, the president is invoking emergency powers to thwart the express will of

This is not merely an inference. The President has been quite explicit that he is declaring
an emergency to get around Congress. In the weeks leading up to the declaration, he repeatedly
stated that he would give Congress time to change its mind about funding the wall, and that he
would declare an emergency only if Congress refused to give him what he wanted. On January
10, President Trump stated his preference for “do[ing] the deal through Congress,”
but he added that if the deal did not “work out,” he would “almost . . . definitely” declare a
national emergency.60 Asked about his threshold for declaring an emergency, President Trump
responded, “My threshold will be if I can’t make a deal with people that are unreasonable.”61 On
February 1, Trump reiterated that he was planning to wait until February 15, the date on which a
temporary appropriations measure would lapse, before issuing an emergency declaration.62 He

Over the course of nearly a year of negotiations, Congress repeatedly declined to allocate $5.7 billion for the
border wall, and never got a bill to the President with more than $1.6 billion. See, e.g. Department of Defense
Appropriations Act, 2018, H.R. 695, 115th Cong. (2017) (failed in conference after an amendment adding $5.7
billion in border wall funding passed the House); End the Shutdown and Secure the Border Act, S.Amdt. 5 to
Supplemental Appropriations Act, 2019, H.R. 268, 115th Cong. (2019).
White House, “Remarks by President Trump Before Marine One Departure,” January 10, 2019,
George Sargent, “Trump: I Have the ‘Absolute Right’ to Declare a National Emergency if Democrats Defy Me,”
Washington Post, January 9, 2018,
“Excerpts from Trump’s Interview with the New York Times,” New York Times, February 1, 2019,; see also “Transcript: President
Trump on ‘Face the Nation,’ February 3, 2019,” CBS News, February 3, 2019, (President Trump
describing emergency declaration as an “alternative” to the process that Congress was engaged in to avert another
shutdown, which was to end on February 15).

predicted that “we will be looking at a national emergency, because I don’t think anything is
going to happen [in Congress]. I think the Democrats don’t want border security.”63

The use of emergency powers as an end-run around Congress is an abuse of these powers
for many reasons. First, as discussed in Parts I and II, emergency powers were never intended to
allow the president to bypass Congress or to cut Congress out of its constitutional policymaking
role. Emergency declarations merely allow the president to rely on a different set of statutes—
ones that Congress has passed in advance, on the assumption that true emergencies would unfold
too quickly for Congress to respond in the moment.

If, on the other hand, Congress has time to respond, there is no justification for bypassing
the ordinary legislative process. (In this case, the president purposefully and explicitly gave
Congress time to act.) And if Congress’s response is to vote against the very action that the
president seeks to take, that expression of Congress’s will should control. Relying on emergency
powers to move forward in such a case is like a doctor relying on advance medical directive to
withhold life-sustaining treatment when the patient is conscious and clearly asking to be saved.64

The abuse is particularly egregious in this case because the Constitution unambiguously
prohibits spending that Congress has not approved. Article I states that “[n]o Money shall be
drawn from the Treasury, but in Consequence of Appropriations made by Law.”65 The president
is thus invoking emergency powers, not just to get around the will of Congress in general, but to
evade an express limitation in the Constitution.

Since the National Emergencies Act was passed, no other president has used emergency
powers to obtain funding Congress has denied. The closest comparison is President Ronald
Reagan’s emergency declaration in 1983, which he used to continue certain export controls
under IEEPA after a statute authorizing such controls had lapsed.66 As noted above, however, the
legislative history of IEEPA indicates Congress’s awareness that presidents would be able to use
IEEPA for that very purpose. Importantly, that was not a case in which Congress voted to deny
the president authority or funding for the very action he then attempted to take.

V. How—and Why—Congress Must Act

Congress can put an end to President Trump’s abuse of emergency powers by passing a
joint resolution to terminate the emergency. At time of writing, the House is preparing to vote on
such a resolution, which is expected to pass easily. It might well pass in the Senate, too, given
that several conservative senators are on record opposing President Trump’s use of emergency

White House, “Remarks by President Trump in Meeting on Human Trafficking on the Southern Border,”
February 1, 2019,
See Elizabeth Goitein, “Trump Is Destroying His Own Case for a National Emergency,” The Atlantic, January 28,
U.S. Const. art. I, § 9, cl. 7.
Exec. Order No. 12444, 48 Fed. Reg. 48215 (October 14, 1983).

powers to build the border wall.67 Of course, if Congress passes the resolution, President Trump
will likely veto it, and Congress will then have to vote on whether to override the president’s

Some lawmakers might choose to vote against the resolution because they believe that
illegal immigration at the southern border is a major problem and that building the wall would
help to solve it. Voting against the resolution on that basis would be extremely short-sighted.
There is far more at stake here than whether a wall is built on the southern border.

For one thing, the direct policy consequences of the president’s emergency declaration
are not limited to the building of a wall. One reason why even some conservative lawmakers
have voted against funding this project is that it would require the government to forcibly
commandeer vast stretches of private property. While the administration claims it cannot
estimate how many landowners will be affected,68 the 700 miles of border fencing constructed
pursuant to a 2006 law—a much less extensive endeavor—required the government to pay out
$78 million in compensation to landowners for 600 tracts of property.69 Furthermore, the main
emergency power President Trump has invoked here, 10 U.S.C. § 2808, will require the
diversion of funds from as-yet unspecified military construction projects. Although President
Trump airily announced that the projects that otherwise would have been funded “didn’t sound
too important to me,”70 it is likely that they are extremely important to the military servicemen
and servicewomen and the communities who would have benefitted from them.

But there is an even more important reason why lawmakers, both conservative and
liberal, should vote to end this emergency. If the declaration is allowed to stand, it will establish
an extremely dangerous precedent. Future presidents will know that they can declare
emergencies to address any problem they consider to be serious, and that they can use those
emergency declarations to give themselves powers Congress has expressly withheld. This will
permanently upset the balance of power between the president and Congress. It will also
undermine one of the basic principles of democracy: that the policies pursued by our government
are those approved by a majority of Congress, not those that Congress cannot muster a
supermajority to reject.

Moreover, the next time a president decides to declare an emergency for the sake of
political convenience, he could invoke powers far more potent than the one President Trump has

Kate Rabinowitz, “What Republican senators are saying about Trump’s national emergency declaration,”
Washington Post, February 20, 2019,
Ranking Member’s Office, S. Comm. on Homeland Security and Government Affairs, “Eminent Domain:
Administration Lacks Plans or Cost Estimates for Land Seizures Necessary to Construct Border Wall,” accessed
February 25, 2019,
Tracy Jan, “Analysis: Trump’s border wall will require fight to take private land,” Chicago Tribune, March 21,
White House, “Remarks by President Trump on the National Security and Humanitarian Crisis on our Southern
Border,” February 15, 2019,

invoked here.71 The Brennan Center has catalogued 123 statutory provisions that become
available to presidents when they declare a national emergency. Ninety-six of these require
nothing more than the president’s signature. Twelve contain a de minimis restriction, such as a
requirement than an agency head certify the necessity of the measure (something the president
could simply order the agency head to do). Only fifteen of these powers contain a more
substantive restriction, such as a requirement that the emergency have certain specified effects.72

While many of the authorities provided in these 123 provisions are measured and
sensible, some seem like the stuff of authoritarian regimes. For example, merely by signing a
declaration of national emergency, the president may take over or shut down radio stations;73 if
the president goes further and declares a “threat of war,” he may take over or shut down facilities
for wire communication—including, potentially, much of U.S.-based Internet traffic.74 Other
powers would allow the president to freeze Americans’ assets and bank accounts,75 to detail
members of the U.S. armed forces to any country,76 to prohibit or limit the export of any
agricultural commodity,77 to suspend statutory wage-rate requirements for public contracts,78 or
to “coordinate” domestic transportation.79

Some members of Congress might assume that this is a problem for the courts, not the
legislature. But when the president oversteps his authority in ways that have broad legal and
policy ramifications, both the judiciary and Congress have a responsibility to act. It would be
shirking its constitutional duties for either branch to shrug its shoulders and assume that the other
will handle matters. That is particularly true here, where flaws in the design of the National
Emergencies Act—in particular, the lack of a definition of national emergency—present
potential obstacles to litigation.

Indeed, no matter what happens with the current emergency declaration, this incident
should serve as a wake-up call to Congress to reform the National Emergencies Act. The law has
not been the check on executive branch action that Congress intended, and in its current form, it
almost invites abuse. It is incumbent on Congress to fix this problem, rather than simply hoping
that the courts will provide after-the-fact relief if and when abuses happen. A handful of
common-sense reforms would preserve the president’s flexibility in times of crisis while
mitigating against the risk of abuse and preventing “permanent emergencies.”

The president has invoked 10 U.S.C. § 2808, which allows the Secretary of Defense, during national emergencies
that require the use of armed forces, to use unobligated funds for military construction projects in support of such
required use.
See Goitein, “Trump’s Hidden Powers,” Brennan Center for Justice; “A Guide to Emergency Powers and Their
Use,” Brennan Center for Justice, last modified January 23, 2019, accessed February 25, 2019,
See 47 U.S.C. § 606(c).
See 47 U.S.C. § 606(d); see also Elizabeth Goitein, “The Alarming Scope of the President’s Emergency Powers,”
The Atlantic, January/February 2019,
See 50 U.S.C. § 1701 et seq.
See 10 U.S.C. § 712(a)(3).
See 7 U.S.C. § 5712(c).
See 40 U.S.C. § 3147.
See 49 U.S.C. § 114(g).

First, although the president’s discretion to declare an emergency should be broad, it
should not be unlimited. Congress should specify that the president may declare a national
emergency only if there exists a significant change in factual circumstances that poses an
imminent threat to public health, public safety, or other similarly pressing national interests.
These criteria would create a baseline, giving the president ample discretion while ensuring that
he cannot declare emergencies to deal with either routine circumstances or new developments
that pose little danger.

Second, an emergency declared by the president should end after 30 days (or a similarly
short period of time) unless Congress votes to continue it. This approach, versions of which are
used by many other countries,80 is more consistent with the core purpose of emergency powers.
It would give the president ready access to enhanced authorities when he needs them most—i.e.,
when the emergency is in progress and Congress has not had time to address it. Once Congress
has had time to act, however—and history shows that Congress can act quite swiftly in the face
of true emergencies81—it should be Congress’s decision as to whether emergency authorities are
a good fit for the crisis at hand. Critically, that would remove the perverse incentive that exists
when the government actor who declares the emergency is the same one who receives additional

Third, no state of emergency should be allowed to continue for more than five years. At
that point, it cannot fairly be said that the circumstances necessitating action are unexpected or
extraordinary; having persisted for several years, they have effectively become a “new normal,”
and should be addressed through non-emergency measures. There is some risk that this approach
could lead Congress to enact permanent expansions of presidential power where temporary ones
would suffice. That concern, in my view, is better addressed by including sunsets in the relevant
legislation, rather than allowing supposedly temporary powers to effectively become permanent
through routine renewals of emergency declarations.

Fourth, there is no reason why an emergency declaration should give the president access
to dozens of powers that are facially irrelevant to the emergency at hand. This state of affairs
presents an irresistible temptation to keep emergency declarations in effect as long as possible, as
they may be used to address other problems—emergencies or otherwise—that might come up in
the future. Congress should specify that the statutory authorities invoked under a declared
emergency must relate to the nature of, and may be used only to address, that emergency.

Fifth, the law should make very clear that emergency powers cannot be used to
circumvent Congress. The National Emergencies Act should be amended to state that no
statutory authority available to the president during a national emergency may be used to provide

See, e.g., Spanish Constitution, § 116,;
Constitution of the Fifth Republic (France) art. 36,; Constitution of Greece art. 48,
For instance, within weeks of the attacks of 9/11, Congress passed the USA PATRIOT Act, sweeping legislation
that ran 342 pages and made changes to more than 15 different laws. Lisa Finnegan Abdolian and Harold
Takooshian, “The USA PATRIOT Act: Civil Liberties, the Media, and Public Opinion,” Fordham Urban Law
Journal 30:4 (2003): 1429.

authorization or funding for a specific action if Congress, following the events giving rise to the
emergency declaration, has withheld authorization or funding for that action.

Finally, there must be greater transparency regarding how presidents use the emergency
powers Congress has granted them. Currently, the president is required to report to Congress
only on emergency-related expenditures, and there is no requirement to make this report public.
Presidents should be required to detail, not only the expenses incurred, but the activities and
programs implemented. These reports should be made public, although classified indexes may be
necessary in some cases.

This list of reforms is not exhaustive, nor does it represent the only possible solution to
address the weaknesses in the National Emergencies Act. It is critical, however, that Congress
take action. The National Emergencies Act framework does not include sufficient protections
against abuse—a fact made plain by the recent actions of President Trump. To honor the original
intent behind the Act and to safeguard democracy against the threat posed by protracted
emergency rule, Congress must amend the law to build in meaningful checks and balances.

Thank you again for this opportunity to testify.